Meng v. Berryhill

Filing 24

ORDER DISMISSING CASE without prejudice. Signed by Judge Robert M. Illman on 1/22/2019. (Attachments: # 1 Certificate/Proof of Service)(rmilc1, COURT STAFF) (Filed on 1/22/2019)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

EUREKA DIVISION

7
8

DEBORAH MICHELLE MENG,
Plaintiff,

9
10

ORDER DISMISSING CASE
WITHOUT PREJUDICE

v.

11

United States District Court
Northern District of California

Case No. 17-cv-05661-RMI

NANCY A BERRYHILL,

12

Defendant.

13
14

This Social Security appeal was filed on September 29, 2017. See (dkt.1). Plaintiff’s

15

motion for summary judgment was due on May 16, 2018. See (dkt. 20). More than seven months

16

have now elapsed since Plaintiff’s motion for summary judgment was due. The motion has not

17

been filed and Plaintiff has not otherwise communicated with the court.

18

On October 18, 2018, the court entered an Order to Show Cause re Dismissal. See (dkt.

19

21). In the order the court took judicial notice of the fact that Plaintiff’s attorney of record,

20

Kenneth J. Collins, is now deceased. The court further noted that no new attorney has substituted

21

in to represent Plaintiff. The court therefore ordered Plaintiff to show cause, no later than

22

November 5, 2018, why this appeal should not be dismissed without prejudice for failure to

23

prosecute and failure to comply with a court order, citing Fed. R. Civ. P. 41(b); Ferdik v. Bonzelet,

24

963 F.2d 1258, 1260 (9th Cir. 1992) and Pagtalunan v. Galaza, 291 F.3d 639, 640 (9th Cir. 2002).

25

The deadline for Plaintiff to respond to the court’s Order to Show Cause passed without a

26

response from Plaintiff.

27
28

In a final effort to contact Plaintiff, the court set a telephonic status conference on
December 4, 2018. See (dkt 22). The court served a copy of the case docket, including the

1

Clerk’s Notice setting the status conference, on Plaintiff at her last known address. That address

2

was courteously provided to the court by the attorney who now occupies Mr. Collins’s former

3

office. Plaintiff did not appear at the status conference. See (dkt. 23). Counsel for Defendant

4

informed the court that they did not have a current address for Plaintiff.

5

“In determining whether to dismiss a case for failure to comply with a court order the

6

district court must weigh five factors including: ‘(1) the public's interest in expeditious resolution

7

of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the defendants;

8

(4) the public policy favoring disposition of cases on their merits; and (5) the availability of less

9

drastic alternatives.’” Ferdik, 963 F.2d at 1260-61, quoting Thompson v. Housing Auth., 782 F.2d

10

at 829, 831 (9th Cir. 1986). See Pagtalunan, 291 F.3d at 640 (confirming application of factors).

United States District Court
Northern District of California

11

In this instance, Plaintiff’s abandonment of her case controls the five factors set forth in

12

Ferdik. Although public policy favors disposition of cases on their merits, Plaintiff’s utter failure

13

to litigate this case makes it impossible for the court to proceed. The court’s need to manage its

14

docket, the public’s interest in expeditious resolution of litigation, and the risk of prejudice to

15

Defendant all weigh in favor of dismissal. The court has waited more than seven months for

16

Plaintiff to obtain counsel and file her motion for summary judgment, yet she has not done so and

17

has not communicated with the court. There are no less drastic alternatives available.

18
19
20
21

Accordingly, IT IS HEREBY ORDERED that this case is dismissed without prejudice for
failure to obey a court order and failure to prosecute.
IT IS SO ORDERED.
Dated: January 22, 2019

22
23
ROBERT M. ILLMAN
United States Magistrate Judge

24
25
26
27
28
2